https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9410

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E1261 OF 2023** **PATRICK NGANGA NJENGA……………………………………… 1ST APPELLANT** **JAMES MUCHIRI CHEGE…………………………………………… 2ND APPELLANT** **-VERSUS-** **PETER OTSIENO WAMAYA…………………………………………... RESPONDENT** *(Being an appeal from the judgment of Hon. S. Muchungi (SRM) delivered on 1st July 2022 in the Chief Magistrate's Court at Nairobi in Milimani CMCC No. 7594 of 2020)* **JUDGMENT** **Background** 1. The Respondent, Peter Otsieno Wamaya, sued the Appellants in the Chief Magistrate’s Court at Nairobi (Milimani Commercial Courts) in CMCC No. 7594 of 2020, claiming general and special damages for injuries suffered in a road traffic accident that occurred on 19th October 2019 at the Railways terminus in Nairobi, involving motor vehicle registration number KCN 119B. 2. His case was a simple one. He was, he said, a boarding passenger: as he stepped onto the Appellants’ vehicle, the 1st Appellant being its driver, drove off before he had safely boarded, so that his leg, still outside, was dashed against the roadside guard-rails and broken. 3. He called three witnesses: himself, a police officer who produced the abstract, and the doctor who examined him. 4. By her judgment delivered on 1st July 2022 the learned trial magistrate found the Appellants wholly (100%) liable and awarded the Respondent Kshs. 800,000/= in general damages and Kshs. 30,696/= in special damages, together with the costs of the suit and interest. 5. Aggrieved, the Appellants brought this appeal. Their memorandum advances seven grounds which, once the chaff is winnowed from the grain, reduce to a twofold complaint. First, that the learned magistrate erred in placing the whole weight of liability upon them where, they say, the Respondent proved no negligence and the pleaded contributory negligence went unconsidered. Secondly, that the award of damages was excessive, unsupported by the pleadings and the evidence, and made in disregard of comparable precedent. 6. They pray that the appeal be allowed, the judgment set aside, and costs awarded to them. 7. The Respondent resists the appeal upon two fronts, procedural and substantive. Procedurally, he contends that the record of appeal is incompetent, being stripped of the proceedings, judgment and decree appealed from despite, he says, repeated directions that the Appellants supply them or file a supplementary record. Leaning on Order 42 rules 4 and 13 of the Civil Procedure Rules, and on the authorities of *Bingwa Sacco Society Ltd v Pauline Aketch Lumumba & Another*, *Gem Motors Wash Ltd v Blue Flame Energy Solutions Ltd*, and *Murai & Others v Wainaina (No. 2)*, he urges that a record shorn of the memorandum, the pleadings and the judgment cannot carry an appeal, and that the appeal ought to fall on that ground alone. 8. On the merits, and without prejudice to that objection, the Respondent submits that the trial court reasoned soundly. The defence, he observes, called but a single witness, a police officer who neither saw the accident nor investigated it credibly, who gave hearsay and contradicted himself under cross-examination, and who was expressly disbelieved. The driver and the conductor, the only persons who could speak to the event of their own knowledge, were never summoned. 9. On quantum, he submits that the award lay comfortably within the range settled by comparable authorities, that the Appellants tendered neither submissions nor authorities of their own, and that the award is neither so high nor so low as to invite interference. 10. He prays that the appeal be dismissed with costs, invoking the caution owed by a first appellate court to a trial court’s findings of fact. 11. The Appellants filed no submissions in this appeal. **Issues for Determination** 1. Stripped of surplusage, three questions fall to be decided: 2. ***Whether the state of the record renders the appeal incompetent;*** 3. ***Whether the learned magistrate erred in holding the Appellants wholly liable for the accident; and*** 4. ***Whether the award of damages calls for the intervention of this court.*** **Analysis and Determination** 1. This is a first appeal. By section 78 of the Civil Procedure Act this court is charged to reconsider the evidence laid before the trial court, to weigh it afresh, and to arrive at its own conclusions, remembering always that it did not see or hear the witnesses. 2. In ***Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123*** the predecessor Court of Appeal described that duty as being to *“****reconsider the evidence, evaluate it itself and draw its own conclusions”***, though the court must always make due allowance for the fact that it neither saw nor heard the witnesses testify. But re-evaluation presupposes a record to re-evaluate and that consideration carries me straight to the Respondent’s threshold objection. 3. The objection is not without force, for an appeal cannot float free of the very decision it assails. Yet it must be weighed against two matters. First, unlike an appeal to the Court of Appeal, a first appeal to the High Court is instituted not by a record of appeal but by a memorandum of appeal (Order 42 rule 1), the record being assembled only upon directions (Order 42 rule 13); and the judgment complained of is, in any event, now before me, the Respondent himself having annexed it to his submissions. 4. Secondly, Article 159(2)(d) of the Constitution, reinforced by sections 1A and 1B of the Civil Procedure Act, forbids this court from sacrificing substance upon the altar of form where the defect works no incurable prejudice. I therefore decline to dismiss the appeal upon the technicality, and will determine it on its merits. 5. On liability the contest is between two irreconcilable accounts. The Respondent’s is that of a boarding passenger flung against the rails by a driver who pulled away too soon. The appellants’, advanced through their solitary witness, is that of a pedestrian who lunged at a moving vehicle and reaped the harvest of his own haste. That a collision occurred is not in dispute; the question is upon whom the law lays the blame. 6. Here the singular advantage of the trial court becomes decisive, for it alone watched the witnesses as they spoke and gauged the timbre of their testimony. It found the Respondent’s evidence *“more cogent without a single contradiction”* even after cross-examination, and it is not the office of this court to unseat so grounded an impression from the cold and silent page. 7. The defence evidence, by contrast, could not bear the weight laid upon it. Its only witness conceded that he had not seen the accident, that he had built his account upon what unnamed persons at the scene had told him, and that neither their statements nor the driver’s were ever recorded. Such testimony is hearsay, a second-hand echo, not the direct evidence that sections 62 and 63 of the Evidence Act demand. 8. Worse, the witness contradicted himself upon whether the Respondent had been issued an abstract, and upon when his investigations had closed. A finding declined upon evidence so friable cannot be faulted. 9. Nor is there room to apportion the blame. Contributory negligence, once pleaded, does not prove itself; he who alleges it must establish it, the burden resting under section 107 of the Evidence Act upon the party who asserts it. The Appellants pleaded a whole litany of particulars against the Respondent, yet led not a shred of credible evidence to make any of them good. The 1st Appellant, the driver himself, and the conductor at his side, the two people on earth best placed to gainsay the Respondent, kept their silence. A pleading unredeemed by proof remains a mere assertion; and assertions, however earnest, do not shift liability. The finding of 100% liability must therefore stand. 10. The complaint against quantum fares no better. An Appellate court does not re-price an award of general damages as though assessing it anew. In **Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1987] KLR 30** the Court of Appeal confined interference to the case where the trial judge took into account an irrelevant factor or left out a relevant one, or where the award is so inordinately high or low that it must be *“****a wholly erroneous estimate of the damage****”*. The Court of Appeal stated as follows: ***“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principles.”*** 1. ***Butt v Khan* [1981] KLR 349** is to the like effect: it must be shown that the judge proceeded upon a wrong principle, or misapprehended the evidence, before the award may be disturbed. ***“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low ”*** 1. Measured against that exacting standard, the sum of Kshs. 800,000/= is unimpeachable. The Respondent had sustained compound (open) fractures of the right tibia and fibula and a deep wound to the leg, no trifling hurts. The learned magistrate weighed the comparable authorities placed before her, made allowance for their age and for the erosion of the shilling, and settled upon a figure below the Kshs. 1,200,000/= the Respondent had urged. That is the very exercise the law requires. 2. The appellants, who filed no submissions and cited no competing authority, have left this court with nothing against which to hold the award inordinate. As to special damages, the settled rule that they must be specifically pleaded and strictly proved was observed, the respondent having produced receipts in their support. There is thus no principled foothold for interference. **Disposition and Orders** 1. For these reasons the appeal is bereft of merit. A trial court that saw the witnesses believed the injured man and disbelieved a witness who had seen nothing; a first appellate court, reading the same record, finds no reason to think it wrong. Accordingly, I make the following orders: **(a)** The appeal is dismissed in its entirety. **(b)** The judgment and decree of the Chief Magistrate's Court at Nairobi in Milimani CMCC No. 7594 of 2020, delivered on 1st July 2022, are upheld. **(c)** The costs of this appeal are awarded to the Respondent. Orders accordingly. DATED and DELIVERED at Nairobi this 2nd day of July , 2026. ……………………………………… **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** *Delivered on a virtual platform in the presence of:* *Morara instructed by KRK Advocates LLP for Appellants* *Kevin Babu - Court Assistant*